Last updated: 18/08/2016
These Terms of Service (“Terms”) specify the scope and terms and conditions of the provision of the services available through the Perfect Gym on-line platform by Perfect Gym Solutions Pty Ltd.
Defined terms in these Terms shall have the following meanings:
- Agreement – the agreement entered into by and between the Service Provider and the Customer in a manner specified in the Services Agreement and these Terms, which govern the provision of Services within the scope and under conditions specified in these Terms.
- Actual Service Availability Time – the total time specified in minutes, per annum, during which the Services are actually available to the Customer.
- Confidential Information – any information related to the other Party's business, received or disclosed in connection with the Agreement, which has not been disclosed to the public and in respect of which the Party has taken actions necessary to keep it confidential; the Confidential Information includes, without limitation, particular technical, technological and organisational information of the other Party or other information that has economic value to the other Party.
- Customer – the entity that entered into the Agreement with the Service Provider.
- Customer Account – an individual account of the Customer created upon registration using the System, accessible after entering the login and the password.
- Extra Services – services provided by the Service Provider in connection with the System, other than the Services provided under these Terms.
- GST – the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
- Intellectual Property – all Intellectual Property Rights of the Service Provider subsisting in the System, or created during the design and development of the System, including software, source and object codes, databases, scripts, records, manuals, documents, specifications, plans, program listings, calculations or drawings all of the Service Provider’s Intellectual Property Rights in the overall concept and operation of the System, and the Confidential Information of the Service Provider.
Intellectual Property Rights – all intellectual property rights, whether registrable or not, including but not limited to the following rights:
- a) patents, copyright, rights in circuit layouts, designs, trade marks and any right to have confidential information kept confidential; and
- b) any application or right to apply for the registration of any of the rights referred to in subparagraph a).
- Party – a party to the Agreement; depending on the context it may be the Service Provider, the Customer or both of them.
- Personal Information – personal information (as defined in section 6 of the Privacy Act 1988 (Cth)) which is collected, stored or handled by or on behalf of either party pursuant to the Agreement.
- Price List – a price list of the Services provided through the System and of the Extra Services, as available at www.perfectgym.com.au.
- Privacy Act – the Privacy Act 1988 (Cth) and any legislation enacted in replacement or amendment with the said Act.
- Services – individual services provided by the Service Provider through the System under clause 5 of these Terms.
- Service Availability Level – a percentage-based relation of the Actual Service Availability Time to the Service Availability Time.
- Service Availability Time – the total time specified in minutes, per annum, during which the Services should be available; while calculating the Service Availability Time, the non-availability of Services due to the reasons referred to in 6.5 shall not be taken into account.
- Service Provider – an entity providing the Services under the Agreement, as specified in clause 18.
- System – an on-line platform made available by the Service Provider to the Customer within a Software as a Service model, through which the Services are provided.
- Term – the term set out in clause 3 of the Head Agreement.
- Terms – these Terms of Services.
- 2.1 The provision of the Services through the System shall commence upon the later of the registration of the Customer Account or the execution of the Agreement by the Parties.
- 2.2 The Customer is obliged to respect the provisions of these Terms.
- 2.3 The System is made available at www.perfectgym.com.au.
- 3.1 To use the System, it is necessary to have a computer with a Windows 8.1 (or a more recent version) operating system and a web browser installed, as well as access to the Internet and an email account. The System may be accessed only through a web browser. Cookies should be allowed. The recommended Internet connection speed is 10 Mb/s.
- 4.1 The registration of the Customer Account and finalisation of the Agreement shall be performed via the www.perfectgym.com.au website by the Customer’s completion of a registration form or by means of entering into the written Agreement; the Customer Account is activated thereafter.
- 4.2 In the case of entering into the Agreement through the website, it is necessary to fill in the registration form available on the website and set the password. The registration form includes in particular the company's name, ACN / ABN number, complete correspondence address together with the name of the country, email address and contact telephone number as well as the contact data of a person responsible for contacts with the Service Provider.
- 4.3 In the process of registration through the website, the Customer must accept these Terms.
- 4.4 After the registration has been completed, an email confirming the creation of the Customer Account with an activation link is sent to the email address of the Customer provided during registration process.
- 4.5 Following the activation of the Customer Account, the Customer may log in to the Customer Account and select the package the Customer wishes to use (for example, Services provided under the Agreement and / or Extra Services, if any). Once the package is selected, the Customer is redirected to another website where a payment for the Services and/or Extra Services may be made, or the Customer is informed about how the remuneration due may be paid by the Customer to the Service Provider.
- 4.6 After the payment has been made, an email confirming the finalisation of the Agreement will be sent to the Customer.
- 4.7 If the Agreement is entered into in writing, information about available payment options will be provided at the signing of the Agreement. Once the payment for access to the System is credited in the Service Provider's bank account, an email confirming the creation of the Customer Account with an activation link is sent to the Customer to the email address provided in the Agreement. Once the link is clicked on, the Customer will be able to set the password to the Customer Account.
- 4.8 In the event of any change of the Customer's data provided in the registration form or in the Agreement, the Customer must notify the Service Provider of such changes immediately.
5.1 Pursuant to the Agreement, the Service Provider agrees and acknowledges that it will provide the following Services to the Customer:
- a) remote access to the System;
- b) administration of the System and storage of data entered by the Customer within the System, including the processing of Personal Information of the Customer's clients;
- c) maintenance and support services in connection with the System; and
- d) educational materials, manuals and knowledge base on the use of the System.
- 5.2 The System is used to support the management of fitness clubs and it allows the Customer, amongst others things, to manage staff, equipment, rooms, relations with fitness club customers, collection of fees from fitness club customers, memberships, points of sale and warehousing. Detailed information on the System functionalities may be found at www.perfectgym.com.au.
- 5.3 At the Customer's request, the Service Provider may organise training for the Customer's employees on the use of the System and it may provide other services related to the implementation of the System. Such services are not included in the Services provided under the Terms and may be provided under a separate offer of the Service Provider for a separate payment specified in such offer.
- 6.1 The Service Provider undertakes to ensure the ongoing provision of the Services by ensuring correct functioning of the System during the term of the Agreement, provided that the Customer uses the System in accordance with technical recommendations specified by the Service Provider.
- 6.2 The Service Provider undertakes to use its best endeavours to rectify failures of the System, if any, in accordance with the following rules:
|Type of failure||Description||Time limit for failure rectification|
Condition of the System which prevents using all of its functionalities or basic functionalities:
|Up to 24 hours from the notification|
Failures which hamper, but do not prevent, using the most important functionalities of the System, i.e.:
|Up to 96 hours from the notification|
|Defects||Errors which do not distort the functioning of the System and specific functionalities.||Up to 2 weeks from the notification|
- 6.3 Subject to sub-clause 6.5 and clauses 10 and 13 of the Terms, the Service Provider agrees that the Service Availability Level per annum shall amount to 99.5%.
- 6.4 The annual period for which the Service Availability Time, the Actual Service Availability Time, as well as the Service Availability Level will be calculated will begin when the Customer the commences its use of the Services.
6.5 In calculating and determining the Service Availability Time, the Actual Service Availability Time and / or the Service Availability Level, the parties must take into account any non-availability due to:
- a) any reason for which the Service Provider is not liable pursuant to clauses 10 and 13 of the Terms;
- b) the suspension of the provision of the Services under 9.7 of the Terms; and
- c) any maintenance and / or modification of the System, on which the Customer was notified in accordance with clause 6.12 of the Terms
- 6.6 The liability of the Service Provider for the damages incurred due to failure on the part of the Service Provider to observe the Service Availability Level indicated in clause 6.3 of the Terms shall be limited exclusively to providing Services to the Customer free of charge in the next or subsequent subscription periods, according to the table below. To make the explanation more clear, the guaranteed Service Availability Level compliant with clause 6.3 of the Terms is also indicated.
|Service Availability Level||Period of rendering Services for the Customer free of charge|
|99.5% or higher||0 days|
|98-99.4%||30 days (1 subscription period)|
|95-97.9%||60 days (2 subscription periods)|
|90-94.9%||180 days (6 subscription periods)|
|lower than 90%||One Year (12 subscription periods)|
- 6.7 In order to obtain the Services free of charge pursuant to clause 6.6 above, the Customer shall send to the Service Provider an application for being rendered the Services free of charge due to failure to observe the Service Availability Level guaranteed under the Agreement (6.3 of the Terms). The application shall be sent to the email address firstname.lastname@example.org within 30 days of the end of the annual period during which the Service Availability Level was lower than 99.5%. The application for being rendered the Services free of charge shall specify the specific periods and hours during which the System was not available along with the duration of the non-availability and the description of the non-availability.
- 6.8 In order to obtain Services free of charge pursuant to 6.6 above, the Customer shall make 12 Subscription Fee payments on an uninterrupted basis. A right to obtain Services free of charge shall not be enjoyed where the Customer is in breach of the Agreement, including without limitation, any failure to comply with the payment terms in clause 9. The Services shall be rendered free of charge in the next or subsequent subscription periods which shall not be refundable if not made use of.
- 6.9 Any failures or errors in the System must be notified to the email address or telephone number specified in the administration panel of the Customer Account within hours specified in this panel. Notification of the System failure or error must include the type and description of the failure. Notification of the failure shall be confirmed by the Service Provider by email.
- 6.10 The Service Provider undertakes to provide, throughout the term of the Agreement, necessary support to the Customer consisting in the advice and consultations on functioning of the System and its handling. Advice and consultations shall be provided through email: email@example.com from 9 a.m. to 5 p.m. (AEST) on business days in Australia.
- 6.11 The Service Provider reserves the right to suspend the provision of the Services for the period of technical breaks necessary due to maintenance and modification of the System or replacement of hardware or software.
- 6.12 The Service Provider shall notify the Customers, to the extent possible, of each planned break in the provision of the Services due to maintenance and modification of the System, 24 hours in advance through messages displayed in the System. The Service Provider shall use all reasonable efforts to ensure that the breaks in the functioning of the System are in hours that are the least disruptive for the Customer.
- 7.1 The Service Provider undertakes to provide the Services through the System under the terms and conditions specified in these Terms.
- 7.2 Use of the System by the Customer requires data transmission and is related to the necessary payment by the Customer of the costs of the data transmission. The Service Provider does not provide data transmission services (i.e. telecommunications services).
7.3 The Customer is obliged in particular:
- a) to provide accurate and up-to-date data about the Customer and its business, and in the event of any subsequent changes of such data, to immediately notify the Service Provider of such changes;
- b) to carry out business activities in accordance with the law;
- c) to use the System as intended and in a manner that does not disrupt its functioning;
- d) to respect these Terms and applicable laws when using the System, and in particular to respect the Intellectual Property Rights of the Service Provider and any Intellectual Property Rights of third parties;
- e) to provide data and information that are true, accurate and up-to-date, not misleading and not in breach of third party rights;
- f) to keep the login and password to the Customer Account confidential and not to share it with third parties;
- g) not to provide contents of an unlawful nature;
- h) not to resort to activities intended to infringe the security of data processed within the System, not to undertake unauthorised attempts to access the System and not to undertake other actions intended to disrupt the correct functioning of the System.
- 7.4 The Customer shall be exclusively liable for the disclosure of its login and password to the Customer Account to any third party. The Customer is obliged to notify the Service Provider immediately of any case of disclosing the login and password to the Customer Account to a third party as well as of any case of infringing the rules specified in these Terms.
- 7.5 The Customer is not entitled to demand that the Service Provider introduce any modifications of the System other than necessary to satisfy obligations of the Service Provider arising from 6.1 and 6.2. In particular, the Customer acknowledges and accepts that under the Agreement the Service Provider makes the System available to the Customer on an "as is" basis and any modification, in particular any modification of functionalities of the System or any change of the Customer's graphic user interface, may be performed by the Service Provider on terms specified in a separate agreement.
- 7.6 The Customer has no right to object to the installation by the Service Provider of any update or modification of the System, in particular related to the addition of new functionalities of the System, modification of the already existing functionalities of the System, or modification of the Customer's graphic user interface.
- 7.7 The Extra Services shall be provided by the Service Provider under separate agreements or terms. The list of the Extra Services is available through the administration panel in the Customer Account. In order to start using the Extra Services, the Customer may enter into an agreement for the provision thereof through the Customer Account or by means of a written agreement.
- 7.8 The Service Provider is entitled to publish the name and the logotype or to indicate the Customer on its Internet website for promotional purposes.
- 8.1 Subject to this clause 8 and clause 9.7 of the Terms, the Agreement shall continue for the Term set out in clause 3 of the Head Agreement.
- 8.2 If the Agreement is renewed for an indefinite period, the Customer may then terminate the Agreement by notice at any time, however, the notice period shall be 30 days, and the termination shall not be effective until the end of the subscription period referred to in clause 9. The Agreement may be terminated by sending a notice of termination to the Service Provider via post or to the email address of the Service Provider: firstname.lastname@example.org, and also by selecting an appropriate option in the administration panel of the Customer Account.
- 8.3 The Customer may terminate the Agreement with immediate effect in the event of any material breach of the Agreement by the Service Provider, after prior ineffective lapse of an appropriate period set for the Service Provider to cease the breach and to remedy the consequences thereof (minimum 14 days).
- The Service Provider may terminate the Agreement with immediate effect in the event of any breach of the Agreement by the Customer, whereby the Customer has failed to cease and remedy the breach within an appropriate period set for the Customer to cease the breach and to remedy the consequences thereof (which must not be less than 14 days). Breaches of the Agreement include in particular breaches of the provisions of 7.3 of these Terms or 15 of these Terms.
- 8.5 The Service Provider may also terminate the Agreement with immediate effect if the provision of the Services is ceased, without any liability towards the Customer.
- 9.1 The Customer must pay the remuneration (Subscription Fee) to the Service Provider for providing the Services, in accordance with the applicable Price List.
- 9.2 The currently valid Price List is available on the website www.perfectgym.com.au. The Customer shall be informed of any change in the Price List by email at least 14 days before changing the Price List.
- 9.3 The Customer may pay the Subscription Fee online via our integrated payments portal. Payments can be made via credit card or debited from the nominated bank account of the Customer; or by bank transfer to the Service Provider's bank account in the bank BSB 06 3023, ACC 1041 8369.
- 9.4 The Subscription Fee shall be charged in advance for 30-day subscription periods.
- 9.5 The Service Provider shall issue an invoice to the Customer for each payment of the Subscription Fee.
- 9.6 The Customer must pay the Subscription Fee within 14 days of the date of the applicable invoice.
- 9.7 All amounts required to be paid by the Customer pursuant to the Agreement are exclusive of any GST. Any amount payable by the Customer must be increased by the amount equal to the GST collectable or payable by the Customer in relation to the provision of the System and the Services by the Service Provider or as a result of this Agreement.
- 9.8 If the Customer fails to pay for the provision of the System and / or Services within 14 days of the date of the applicable invoice, the Service Provider shall have the right to suspend the provision of all or some Services until the Customer pays the outstanding remuneration or to terminate the Agreement with immediate effect upon the ineffective lapse of 7-day period set for the Customer to pay the outstanding remuneration.
- 9.9 In the event that the Customer upgrades the scope of services provided within the package purchased by the Customer in the System, in particular by increasing the number of fitness clubs using the package, the Subscription Fee applicable to the new package increases immediately according to the Price List and is due on pro- rated basis, taking into account number of days remained to the end of subscription period. For the avoidance of doubts downgrade by the Customer of the services provided within the package or no actual use of the Services and/or the System by the Customer does not entail decrease of the Subscription Fee during the term of the Agreement.
- 10.1 The Service Provider makes no representation nor gives any warranty in relation to any incorrect performance or functionality which results, partly or wholly, from data, records or other information provided by the Customer or a third party.
- 10.2 Except as the Agreement specifically states, or as contained in any express warranty provided with the System, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture or performance of the System or any contractual remedy for its failure.
- 10.3 The Customer acknowledges that the System cannot be guaranteed interruption or error free and the Customer further accepts that the existence of any such errors shall not be construed a breach of this Agreement or section 54 of the Australian Consumer Law (ACL) Schedule to the Competition and Consumer Act 2010 (Cth).
- 10.4 The Customer acknowledges and accepts that the accuracy of the System’s operation depends on the accuracy of the data or information supplied by the Customer and any third parties, and that the Service Provider will not be liable for any damage to property, injury or death to any such person or any other claims and demands which may be made against it if such damage results from the data or information supplied by the Customer or any third parties.
- 10.5 Except as specifically set out in the Agreement or in these Terms, the Service Provider makes no representation nor gives any warranty in relation to any incorrect performance or functionality which results, partly or wholly, from data, records or other information provided by the Customer or a third party.
10.6 The Customer warrants that all data that it uploads to the System will:
- a) be accurate, current and complete;
- b) be free from any defects and / or errors;
- c) be fit for any implied or disclosed purpose; and
- d) not infringe the intellectual property rights or any third parties.
- 11.1 The Customer acknowledges that the System is subject of copyright. The Customer will not during or any time after the expiry of the termination of the Agreement permit any act which infringes that copyright and, without limiting the generality of the foregoing, the Customer specifically acknowledges that the Customer may not copy the System except as otherwise expressly authorised by this Agreement.
- 11.2 The Customer must indemnify the Service Provider against all liabilities, costs and expenses that the Service Provider may incur to a third party as a result of its breach of the copyright provisions or any other provision of the Agreement.
- 11.3 All right, title, interest, ownership rights in and to the System, and all copies thereof, are and at all times shall remain the property of the Service Provider.
- 11.4 The Customer has no rights in the System other than those set out in the Agreement. Other than in accordance with the Agreement, the Customer must not sell, license, sub-license, assign, transfer or in any other way encumber, exploit or deal with (including as a result of succession, or a change in ownership or control) the System, the Intellectual Property or the Intellectual Property Rights existing in the System without the Service Provider’s prior written consent upon such terms as the Service Provider considers reasonable in the circumstances.
- 11.5 All rights in and to the System and the Intellectual Property are and remain the property of the Service Provider. The Customer shall not acquire or retain any right, title or interest in the System or the Intellectual Property except as provided in the Agreement.
- 12.1 The Service Provider may provide access to the test version of the System (Test Version) free of charge for the period chosen by the Service Provider to enable the Customer to evaluate the System and its suitability for its needs. In such a case, clauses 6, 8, 9, and 17 of the Terms shall not apply. The agreement for access to the Test Version shall be concluded for a definite period of time indicated by the Service Provider. Not all Services can be available in the Test Version.
- 12.2 The Customer agrees and acknowledges that, if the Service Provider provides the Customer with access to the Test Version in accordance with clause 12.1, then any decision of the Customer to purchase the Services and to obtain access to the System:
- a) will be based solely on its experience of the Test Version, the functionalities of the Test Version and the scopes of the Services;
- b) will not be based on any images, presentations, advertising materials or related promotional materials made available to the Customer from the Service Provider or via the Service Provider’s website or otherwise; and
- c) is an acknowledgement that the System is suitable for and has the functionality and performance required by the Customer for its needs.
- 13.1 From time to time, the Service Provider may refer the Customer to various service providers (Referred Service Providers).
- 13.2 The Customer will be under no obligation to obtain the services of any Referred Service Providers under this clause 13.
- 13.3 The Customer acknowledges and agrees that the Service Provider may receive commissions from any Referred Service Providers from which the Customer obtains any services.
- 14.1 If the Customer is a consumer, nothing in this Agreement restricts, limits or modifies the Customer’s rights or remedies against the Service Provider for failure of a statutory guarantee under the ACL.
- 14.2 If clause 14.1 will not apply, then other than as stated in the Agreement or in any written warranty statement, the Service Provider is not liable to the Customer in any way arising under or in connection with the use or other dealings with the System by the Customer or any third party.
- 14.3 The Service Provider will not be liable for any direct, indirect or consequential losses suffered by the Customer or any third party, howsoever caused, including but not limited to the loss of turnover, profits, business or goodwill or any liability to another party as a result of any performance, delay, errors in the System or any omissions in any data of information supplied pursuant the Agreement or as a result of the Service Provider being unable to provide upgrades or new releases or any defects or deficiencies in the System, except to the extent of liability imposed by the ACL.
- 14.4 No warranty is given as to the accuracy, precision, or reliability of reports, data or information generated by the System.
- 14.5 Nothing in this Agreement is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation which cannot be excluded, restricted or modified.
- 14.6 The Customer assumes all risk and liability for loss, damage or injury to persons or to the Customer’s property, or third parties arising out of the use or possession of the System, unless recoverable from the Service Provider on the failure of any statutory guarantee under the ACL.
- 14.7 The Service Provider shall not be liable for any failure of the System caused by a force majeure event. A force majeure event shall mean any event beyond the reasonable control of the Service Provider. In case of a failure, the Service Provider shall inform the Customer of the reasons for the failure by email if the Service Provider, if possible.
- 14.8 The Service Provider shall not be liable for any technical problems, including delays in data transmission attributable to the equipment belonging to the Customer and the devices, information systems and computer and telecommunication networks belonging to telecommunication service providers.
- 14.9 The Service Provider shall not be liable for data transmission quality and speed resulting from the services provided by the telecommunication service provider. The Service Provider shall not be liable for the no performance or improper performance of the Services due to incorrect operation of the telecommunication services used by the Customer.
- 14.10 The Service Provider shall not be liable for any incorrect use of the System by the Customer, i.e. not intended use of the System, use that is non-compliant with the Terms or illegal.
- 14.11 The Customer shall indemnify the Service Provider against any third party claims of violation of their rights, including personal interest, due to the Customer's use of the System.
- 14.12 The Service Provider shall not be liable for any damage suffered by the Customer due to the risks existing in the Internet, in particular breaks into the Customer's devices, password takeover by third party, virus infection of the Customer's devices.
- 14.13 The Service Provider shall not be liable for the contents of the data and information entered into the System by the Customer.
- 14.14 The Customer shall be liable for actions and / or omissions of any entities to which the Customer provides access to the System through the Customer's own Customer Account, as if the Customer had made those own actions and / or omissions.
- 14.15 The Service Provider's liability for non-performance or improper performance of the obligations arising from the Agreement shall be limited to the Customer's actual damages and shall not include lost profits, if any. The Service Provider's liability shall be limited (in the year of the performance of the Agreement) to the amount equal to the Subscription Fee for a 30-day period of the provision of the Services. The aforementioned limitation shall not apply to the liability for intentional damage.
- 14.16 The Customer agrees to indemnify the Service Provider against all expenses, losses, damages, liabilities and costs (including indemnity from legal costs) that the Service Provider or a third party may sustain or incur as a result of:
- a) any breach of the Agreement by the Customer or the Customer’s employees, agents or contractors;
- b) any negligent or unlawful act or omission of the Customer or any of the Customer’s employees, agents or contractors;
- c) the provision of the data by the Customer;
- d) the Customer’s use of the System;
- e) a third party’s use or reliance on any data or information uploaded to the System;
- f) a breach of any third party’s copyright arising in relation to any data or information uploaded to the System;
- g) any breach by the Customer of the ACL arising in relation to any data or information uploaded to the System.
- 15.1 The Customer entrusts the Service Provider with processing of Personal Information of its clients (customers of fitness clubs) and of its employees, and the Service Provider accepts such data for processing.
- 15.2 The Customer represents that it is the controller of the Personal Information of its clients and its employees and fulfilled the legality conditions for the processing of such Personal Information.
- 15.3 The Service Provider undertakes to process Personal Information in accordance with the Privacy Act and the Agreement, and exclusively for the purpose of providing the Services, including in particular storage of Personal Information entered into the System by the Customer.
- 15.4 The Service Provider undertakes not to add, modify or delete any data entered by the Customer, excluding:
- a) initial configuration of the System during its implementation;
- b) entry of data during the training provided for Customer's employees;
- c) clear requests of the Customer to add, modify or delete data from the System, sent to the Service Provider by email at email@example.com.
- 15.5 The following categories of Personal Information of the Customer’s clients may be processed: first and last name, date of birth, address of residence, telephone number, email address, photo, identity card number, fitness club membership details, data concerning payment for fitness club membership. The following categories of Personal Information of the Customer’s employees shall be processed: first and last name, position, fitness activities conducted, address of residence, date of birth, telephone number, email address, photo.
- 15.6 The Service Provider and the Customer both agree and acknowledge that they will implement appropriate safeguards in the processing of Personal Information in accordance with the Privacy Act.
- 15.7 The Customer agrees and acknowledges that the Service Provider may subcontract the processing of Personal Information entrusted to the Service Provider by the Customer. The Service Provider shall inform the Customer to which entity it entrusts processing of Personal Information each time before it sends the data to such further processing entity.
- 15.8 Subject to clause 14.7 above, the Customer shall have the right to control the processing of Personal Information by the Service Provider, in particular to require the Service Provider to reply in writing to any questions and to provide clarifications as to whether the processing of Personal Information is carried out in compliance with laws and provisions of the Agreement.
- 15.9 In the event of termination or expiration of the Agreement, the Service Provider will return the Personal Information from the System in a commonly used machine readable format (for example, in Excel format), and will delete the Personal Information from all data carriers, provided that copies of such data can be saved, e.g. in back-up systems, if required or permitted by the law.
- 15.10 Each party must ensure that in the performance of its obligations under the Agreement, it complies at all times with the Privacy Act and the Australian Privacy Principles.
15.11 The Customer must:
- a) take any necessary steps to maintain the security of any Personal Information that it holds and only provide the Service Provider with access to Personal Information which the Service Provider reasonably requires in order to ensure the operation of the System; and
- 16.1 The Parties agree and acknowledge that they will, subject to mandatory provisions of law, keep confidential all the Confidential Information and not to disclose it to any third party and use it for any purposes other than those arising directly from the Agreement, without prior written consent of the other Party.
- 16.2 The Customer must not decompile, disassemble, reverse engineer, copy, create a derivate work of, make any written notes, reproduce, retain, store, record, document or duplicate any part of the Service Provider’s Confidential Information which appears written, computerised or other recorded form, nor attempt to make any variations, modifications or improvements to any of the Service Provider’s Confidential Information without the prior written consent of the Customer.
- 16.3 The Customer must, as soon as reasonably practical after the request by the Service Provider or the termination of the Agreement, return and / or destroy any and all of the Service Provider’s Confidential Information in the Customer’s possession or control including any variation, modification or improvement and the Customer must not retain, record, store, document or computerise any of the Service Provider’s Confidential Information.
- 16.4 The confidentiality obligation of the Parties, referred to hereinabove, shall not apply to the Confidential Information which / if:
- a) the Party obligated to keep confidentiality can document that it was in its possession at the time of its disclosure by the other Party;
- b) is or will become public or publicly available otherwise than through an action or omission of the Party obligated to keep confidentiality, its representatives, employees or agents,
- c) is obtained by the Party obligated to keep confidentiality from a third party which has the right to possess such materials and information and is not bound directly or indirectly to the other Party to the Agreement by the confidentiality obligation,
- d) must be disclosed to the appropriate third parties, authorities or courts under the applicable law, or within the scope arising from the regulations and guidelines applied at any stock exchange where Service Provider's shares may be listed, provided that the Confidential Information is disclosed exclusively to the necessary extent and the Party disclosing such information notifies the other Party of such disclosure immediately but not later than within 14 days.
- 17.1 The Customer shall have the right to lodge complaints in the cases indicated in the applicable laws, in particular in case of inaccuracies related to the System operation.
- 17.2 The complaint may be lodged by traditional mail, email or by contact form on the website of the Service Provider. The complaint should be sent to the addresses indicated in § 16 of the Terms.
- 17.3 The complaint should include at least the Customer's name, email address which is Customer's login in the System, detailed description of the objections raised and postal address of the Customer.
- 17.4 If the information given by the Customer is not sufficient or more details should be provided, the Service Provider shall request the Customer lodging the complaint to complete the information or provide more details. The time of receipt of additional information or more details to the extent necessary to consider the complaint shall be deemed as the time of effective lodging of the complaint.
- 17.5 The Service Provider shall consider the complaint within 30 days from the date of receipt of the complaint and shall immediately inform the Customer about the manner of its settlement.
- 17.6 All other questions and comments should be sent to the email address of the Service Provider indicated in 18 of the Terms or by means of the contact form on the website of the Service Provider.
- 18.1 Depending on the registered office or place of residence of the Customer, Service Provider, the governing law and jurisdiction shall be determined according to the following table:
|Registered office or place of residence of the Customer||Name of the Service Provider||Governing law||Jurisdiction|
|Australia and New Zealand||Perfect Gym Solutions, Pty Ltd. (ACN 612 163 532) of 398 Lonsdale St, Melbourne VIC 3000, Australia||Laws of Victoria, Australia||The non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those courts.|
|Name of the Service Provider||Postal address||Email address||Telephone number|
|Perfect Gym Solutions Pty Ltd||398 Lonsdale St, Melbourne VIC 3000, Australiafirstname.lastname@example.org||1300 088 922|
- 20.1 The Terms are available at the webpage www.perfectgym.com.au, and are also made available through the System.
- 20.2 If the Agreement is renewed for an indefinite period, the Service Provider reserves the right to change these Terms at any time after the renewal of the Agreement. The Customer shall be notified by the Service Provider of any change in the Terms no later than 7 days prior to the date on which the Terms containing the amendment become effective. The amended Terms shall be binding on the Customer if the Customer does not terminate the Agreement at the next possible termination date.
- 20.3 In case of any discrepancies between the provisions of the Terms and the mandatory laws, such laws shall apply instead of the Terms and the remaining part of the Terms shall remain in force.